The 2012-2013 Conference of State Court Administrators Policy Paper on Evidence-Based Pretrial Release examines the key issues driving the need for courts to implement evidence-based practices for determining pretrial release of criminal defendants. A fundamental issue is the reliance in many jurisdictions on the payment of money as the primary pretrial release condition rather than on evidenced based assessments of the risk of flight or threat to public safety. By legislation or court rule, eighteen states, the District of Columbia and the federal government have established a presumption that defendants charged with bailable offenses should be released without bond unless a judicial officer has determined that the defendant poses sufficient risk to require more restrictive conditions or detention. Yet in many states and localities pretrial release decisions are based on the application of bail schedules with pre-set amounts of money payment for particular offenses. This model for pretrial release elevates the economic status of the defendant over assessments of individual risk in release determinations.

The movement toward evidence-based pretrial risk assessment has grown as its benefits have been tested and validated. At the same time, the detrimental consequences of money-based pretrial release policies and subjective screening practices have been examined and confirmed. Research and practice have demonstrated the significant impacts that pretrial incarceration can have on access to justice and fairness of the criminal justice system, public safety, and the costs of detention for local jails and taxpayers. The following summary of these three areas of concern includes links to relevant literature and other supporting resources.

Access and Fairness

Two studies of nonfelony cases in New York City indicate that even relatively low bail amounts can result in low-income defendants remaining in detention for significant periods of time. In one study (Phillips, 2007), 25% of defendants with bail set at $750 or less remained in detention a week or longer, and nearly half of detained defendants served time in jail for the sole reason that they did not have the means to post bail. In the second study (Human Rights Watch, 2010), defendants in 87% of cases (19,617 ) with bail set at $1000 or less could not post bail at arraignment and remained in pretrial detention an average of 15.7 days. Moreover, 71.1% of these defendants were charged with nonviolent, non-weapons-related crimes. A number of other studies have shown that many defendants in pretrial incarceration lack the financial resources to be released yet pose little threat to public safety or risk of flight (VanNostrand, 2007).

Five decades of research indicate that defendants held in pretrial detention have less favorable outcomes on several dimensions than those who are released, and more recent studies confirm these findings (Phillips, 2007; Phillips, 2008). Defendants experiencing pretrial incarceration have higher rates of guilty pleas, convictions, sentences that include incarceration, and lengths of post-conviction incarceration (Lowenkamp, VanNostrand, and Holsinger, 2013). Pretrial incarceration also is associated with higher recidivism rates (see Public Safety, below).

Pretrial release systems that base release primarily on ability to pay without risk assessment potentially reduce public safety. Defendants with financial means who pose a higher risk to public safety are released while defendants posing far less risk who cannot pay the bail amount remain in detention. Defendants who are detained pretrial also have higher recidivism rates (Bechtel, Lowencamp & Holsinger, 2013). Other threats to public safety are the use of subjective screening devices (Levin, 2007) and measures that have not been shown to be associated significantly to failure to appear or reoffending during pretrial release (Bechtel, Lowencamp & Holsinger, 2011). Actuarial risk assessments have been shown to be more effective in determining who is more likely to pose a threat to public safety than pre-set bail amounts based on the offense or other systems that rely on professional judgment or subjective screening devices (Levin, 2007).

The United States has the world’s highest total of pretrial detainees (476,000) and fourth highest rate of pretrial detention (158 per 100,000) (Open Society Foundation, 2010). These high rates of pretrial detention have led to alarming increases in costs for counties and municipalities to build, maintain and staff jail facilities. The Open Society Institute estimates that “taxpayers spent $9 billion on pre-trial detainees” in 2010. According to the Pretrial Justice Institute, the average cost of one jail bed is $60 per day and ranges as high as $200 in some jurisdictions.

The pervasive practice of requiring financial bonds for pretrial release has contributed to the rise in jail populations and the attendant costs of housing pretrial detainees (Open Society Foundation, 2010). Evidence-based risk assessment is a more effective tool for determining pretrial release and potentially can save taxpayers and local government significant resources now applied to pretrial incarceration.